May 19, 2013

The Supreme Court's 2012-13 term has included several notable cases, with decisions to be handed down anytime. Among the notable cases which could be decided in the coming weeks are:

Article Photos

U.S. Supreme Court Chief Justice John Roberts listens to Father Moritz Fuchs give the invocation prior to Roberts’ speech at the Jackson Center on Friday. Fuchs was Robert H. Jackson’s bodyguard at the Nuremberg Trials.P-J photo by Matt Spielman

SHELBY COUNTY, ALA. V. HOLDER; NIX V. HOLDER

At issue is Section 5 of the Voting Rights Act of 1965, which gives federal authorities oversight of states and localities with a history of voter discrimination. Any changes in voting laws and procedures in those areas has to be approved with authorities in Washington. The section was reauthorized in 2006 for another 25 years, prompting counties in Alabama and North Carolina to file suit, saying the monitoring isn't necessary and is burdensome. The provision covers all or parts of 16 states, though other states aren't covered by the provision even if they discriminate against minority voters.

The case is also a barometer for the court's interaction with Congress and its deference to past precedent. Decisions in the 1960s left it to Congress to decide such matters. In the 1997 case City of Boerne v. Flores, Archbishop of San Antonio, et al., heard while William Rehnquist was chief justice, Justice Kennedy wrote, "While the line between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law is not easy to discern, and Congress must have wide latitude in determining where it lies, the distinction exists and must be observed. There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end."

Striking down Section 5 of the Voting Rights Act would put the court in direct opposition to Congress.

FISHER V. UNIVERSITY OF TEXAS AT AUSTIN

The Fisher case is an interesting challenge of affirmative action rules at the University of Texas. Most undergraduates are admitted under a policy that guarantees admission to any student in the top 10 percent of any Texas high school. Remaining positions are filled by a program that considers race and other factors to promote diversity at the university.

A white student filed a lawsuit after she was denied admission, saying the consideration of race and other factors used by the university was discriminatory toward her and violates the Equal Protection Clause of the Constitution.

According to www.scotusblog.com, Roberts signaled his opposition to the affirmative action policy during oral arguments of Fisher v. University of Texas at Austin, pressed the university's attorneys about the number of minority students that would signify the policy's success and disagreeing with several other points they raised. According to the post's author, Tejinder Singh, there had been some discussion whether Roberts' vote to uphold the Affordable Care Act in National Federation of Independent Business v. Sebelius signaled a more liberal side of Roberts.

"Of course, the term ahead will provide many more opportunities for the Chief Justice to signal his sympathies," Singh wrote. "But yesterday's argument undermines the theory that Chief Justice Roberts switched teams for good. In all likelihood, he is a safe vote for Ms. Fisher."

U.S. V. WINDSOR, HOLLINGSWORTH V. PERRY

The case is one of several dealing with the federal Defense of Marriage Act, which defines marriage for federal purposes as unions between a man and a woman and denies tax, health and pension benefits to same-sex couples in states where they can legally marry. The law's critics say the denial of benefits violates the equal protection clause in the Fifth Amendment of the Constitution.

There is a chance the court could dismiss both cases on procedural issues. In Windsor, there is a question of who is aggrieved since both President Barack Obama and the plaintiff want the Defense of Marriage act struck down. Many of the justices raised questions during oral arguments about whether the supporters of an initiative have standing to defend it if the state's usual defendants, the governor or president and attorney general, won't do so. If the court dismisses Hollingworth, it means California's Proposition 8, which makes same-sex marriage legal, will stand. Dismissing Windsor muddies the waters surrounding the Defense of Marriage Act. While Ms. Windsor would not have to pay the estate tax owed after her spouse died, it would not affect the law.

A review of transcripts from the oral arguments seem to show a court that is willing to overrule DOMA if the justices can convince themselves they are able to rule on the case.